from the it-ain't-over-'til-alki-david-sings dept

Earlier this year, lots of copyright law watchers were taken by surprise when Alki David's video streaming service, FilmOn (though its name constantly has changed) actually won a case in California. If you don't recall, the service was a sort of fake knock-off of Aereo, enabling streaming broadcast TV service on the internet. Alki David, an eccentric, publicity-hound wealthy guy, had been sued earlier with a similar service, using a different technical infrastructure, and had responded with some ridiculous countersuits. When Aereo hit the scene, and had been carefully vetted by copyright lawyers who believed (strongly) that it was following the letter of the law, David suddenly declared that FilmOn was using the same micro-antenna infrastructure and got sued.

In the early days, Aereo was winning its cases, while FilmOn was losing its cases. It was so ridiculous that I heard conspiracy theories that the Hollywood-connected (he likes to promote the fact that he's acted in some movies) David had actually set up FilmOn as something of a legal foil to Aereo to set precedents in one direction. That's probably too big of a conspiracy theory, but either way, Aereo made it to the Supreme Court and famously lost when the Court made up its weird "looks like a duck" test, saying that Aereo "looked" like a cable TV system, and that Aereo's service was a "public performance" and thus infringing.

After the dust settled, people realized that, based on the Supreme Court ruling, it sounded like an earlier 2nd Circuit appeals court ruling in 2011 over a company named ivi was possibly overturned. ivi offered a similar service, but claimed that it was a cable TV service and just had to pay compulsory Section 111 fees to rebroadcast broadcast television. Aereo and FilmOn both quickly pivoted in their cases to argue that if the Supreme Court said they "looked like" cable, then the ivi ruling was no longer good law, and they, too, should be able to operate just by paying the compulsory licenses. For Aereo, the lower court didn't buy it. It wasn't going that well for FilmOn either, with a NY court actually holding the company in contempt for pushing this argument.

And then there was the California ruling from earlier this year... followed up this week by another loss for FilmOn (found via Eriq Gardner at THResq), this time in DC. The ruling itself is apparently under seal so the exact reasoning is not clear, but it appears that a real circuit split is potentially developing, meaning there's a real chance that, at the very least, the issue of whether or not online streaming services can just pay Section 111 compulsory fees could end up before the court. It would be somewhat ridiculous and hilarious if FilmOn ended up winning that argument, while Aereo (and ivi) got completely shut down. Copyright law can be weird sometimes.

from the filmon-wins-while-aereo-loses dept

Well this is a surprise. During nearly the entire time of the big Aereo fight over streaming TV online, there was a second player fighting battles on the side: FilmOn, by self-promotional billionaire Alki David (at times the name of FilmOn changed to mock Aereo and its investor Barry Diller, but it was originally FilmOn and eventually became FilmOn again down the road). Aereo appeared to have been constructed carefully to follow the various precedents in court cases, whereas FilmOn appeared to be designed on a whim to just get whatever attention it could. In the early days, it was little surprise that Aereo won and FilmOn lost (often badly). The arguments FilmOn's team made in court were not at all sophisticated and seemed mostly to be daring the judge to rule against them.

Then, after the Supreme Court ruled in the Aereo case using its "looks like a duck test," both companies shifted plans and started arguing that if the Supreme Court was arguing that they were the equivalent of cable TV companies then they should have access to compulsory licenses under Section 111 that allows cable systems to offer local channels so long as they pay a fee to the Copyright Office. In other words, if you're going to call us a duck, then we're going to quack.

In Aereo's case, the court was not impressed. And it looked like the same thing was happening in FilmOn's case as well. In fact, the company was held in contempt as it tried to push this argument forward. In both cases, courts pointed to the ruling against ivi, an earlier online streaming company that based its entire business on leveraging that Section 111 compulstory license. Aereo and FilmOn tried to argue that the Supreme Court's Aereo ruling effectively overruled the ivi ruling. And the courts had rejected this argument.

Until now. In a move incredibly surprising to probably everyone, a court has actually sided with FilmOn, saying that it can make use of Section 111. This is a different case and different court than the one that found FilmOn in contempt last year (Hollywood is suing in a few different places). In this ruling, the judge, George Wu, is well aware of all of the other rulings in Aereo and FilmOn cases... he just disagrees:

... this Court disagrees with the Second Circuit's decision in an analogous case....

In fact, the court argues that the Supreme Court ruling in Aereo actually does support the idea that internet companies qualify for a Section 111 compulsory license, because the Supreme Court keeps pointing back at the Fortnightly Supreme Court ruling, which was the impetus for Congress to change the law concerning cable TV and require the compulsory license. And, based on that, the court thinks that FilmOn has a legitimate argument that its service fits into the same category. Basically, the court says that it can see no reason that "internet" video providers should not qualify for the Section 111 licenses the same way Congress intended cable TV companies to qualify for it. The judge has trouble seeing how suddenly inserting "on the internet" makes things any different.

In finding that ivi's internet streaming service did not qualify for the §111 compulsory license, the Second Circuit affirmed the district court's determination that it was unclear whether ivi was a "facility" that receives broadcast signals and makes secondary transmissions, or whether the "internet" qualified as a "communications channel." ... The Second Circuit held that the statutory text was unclear as to whether the defendant operated a "facility" because "it is certainly unclear whether the Internet itself is a facility, as it is neither a physical nor a tangible entity; rather, it is 'a global network of millions of interconnected computers,'" thus, there is "uncertainty as to whether an Internet retransmission service is or utilizes a facility that receives and retransmits television signals.... And the Second Circuit noted that while Congress added "microwave" as an "acceptable communications channel for retransmissions," it had not "included the 'lnternet'" as an acceptable communications channel under § 111.... The Second Circuit did not purport to find any ambiguity in the phrase "or other communications channels," but nonetheless deferred to the Copyright Office's view that it should not be read broadly to include "future unknown services."

But, the court notes, that really doesn't make any sense under the law:

This is all at loggerheads with the thrust of Plaintiffs' prior "technology agnostic" argument in this case. And it is difficult to recognize the ambiguity the Second Circuit saw in the statute, at least as applied to the facts of this case... The "internet" is not the "facility" urged by Defendants here. And it can't be a "facility" for purposes of the § 111 analysis because without Defendants' facilities, the internet does not receive Plaintiffs' public broadcast signal. Thus, the undisputed facts in this case are that the signals are not received by "the internet." They are received by antennas, located in particular buildings wholly within particular states. They are then retransmitted out of those facilities on "wires, cables, microwave, or other communications channels." We know that they are so communicated because Defendants' users received them....

Thus, the nebulous nature of the internet does not seem to bear on whether Defendants operate equipment that "receives signals transmitted or programs broadcast by one or more television broadcast stations," reformats those signals, and then sends them out to the viewing public." .... [T]he Second Circuit's ivi II opinion focuses on the mysterious "ether" (then spelled "either") through which the retransmission is made, but the "facility" that Defendants have control over and operate consists of the "complicated electrical instrumentalities" used for retransmission, which precede "the internet" in Defendants retransmission scheme.

Thus, contrary to the Second Circuit's conclusion, it is unnecessary to turn to the legislative history or the administrative interpretation: "if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis."...

Basically, the internet is meaningless here under the statute, and based on this court's ruling, ivi, Aereo and FilmOn are likely no different than cable companies (quack, quack!), and thus they should absolutely be able to make use of the § 111 compulsory licenses.

Of course, knowing that this ruling is different than others and the fact that the FCC is rethinking all of this anyway, the court is allowing the case to be immediately appealed. Still, this certainly makes things interesting and, depending on the eventual appeals court ruling, could set up a circuit split. Of course, it could become moot by the FCC, but at the very least it shakes things up in some interesting ways that say that if a company quacks like a cable duck on the internet, perhaps we really should treat it as a cable duck.

from the looks-like-a-duck,-perhaps-we-should-make-it-a-duck dept

Aereo's most recent effort to stay alive was to take the Supreme Court's "looks like a duck" test and to say, since the Supreme Court said it looked like cable TV (for the sake of declaring its service a "public performance"), "fine, then let us quack like a duck and pay compulsory licenses under Section 111." Only problem? Other courts have said internet services don't qualify as cable systems for Section 111, leaving them in a Schrodinger's CATV situation. Aereo is a cable TV system as far as the Supreme Court is concerned when it's talking about public performance, but it's not a cable TV system when it wants to go to the FCC and copyright office to pay a compulsory license, which is available to cable and satellite providers.

It appears that FCC Commissioner Tom Wheeler may be looking to change that, beginning a process to give internet companies access to those compulsory licenses, letting "over the top" (OTT) video providers get access to network television at compulsory rates:

In 1992 Congress realized that the then-nascent satellite industry would have a hard time competing because much cable programming was owned by cable companies who frequently kept it from competitors. Congress mandated access to cable channels for satellite services, and competition flourished. Today I am proposing to extend the same concept to the providers of linear, Internet-based services; to encourage new video alternatives by opening up access to content previously locked on cable channels. What could these over-the-top video providers (OTTs) supply to consumers? Many different kinds of multichannel video packages designed for different tastes and preferences. A better ability for a consumer to order the channels he or she wants to watch.

Wheeler is clearly thinking of Aereo here, even noting that the company recently came to the FCC to plead for this sort of thing:

In Title VI of the Communications Act, Congress created rules to ensure that cable companies that own video content can’t raise artificial barriers to competition by refusing to let their video competitors have access to the programming they own. That worked for satellite providers, and also helped telephone companies entering the video business. I believe it makes just as much sense – and will have just as positive a consumer benefit – for an OTT.

Such benefits follow from innovation. Taking advantage of this rule, new OTTs may offer smaller or specialized packages of video programming, so consumers will be able to mix-and-match to suit their tastes. Aereo recently visited the Commission to make exactly this point – that updating the definition of an MVPD will provide consumers with new choices. And perhaps consumers will not be forced to pay for channels they never watch.

Of course, this move may be too little, too late for Aereo. The company has been losing in court, and any final FCC rules may take a bit of time. Still, at the very least it can mean that the next Aereo or ivi may actually be able to survive, rather than have to deal with a veto from the TV networks.

from the cable-company dept

Aereo is back in a district court trying its "okay, fine, you say we look like a duck, we'll act like a duck" explanation so that it can stay in business and pay the statutory rates for a cable company. As you hopefully know by now, this is in response to the Supreme Court's "you're a cable company!" ruling. The broadcasters, of course, just want Aereo to die, so they claim that even if the Supreme Court declared it a cable company, the company still can't pay statutory rates. Aereo tried to skip the district court and go straight to the appeals court, but that attempt was (probably rightfully) rejected recently, so now it's back at the district court, once again making the case for it being a cable company.

Its key argument is, basically that, during oral arguments, Justice Sotomayor more or less said if the Court finds Aereo to be a cable company, then it could just pay Section 111 statutory fees and be legal.

JUSTICE SOTOMAYOR: . . . But I look at the definition of a cable company,
and it seems to fit. . . . [Aereo] [m]akes secondary transmissions by wires, cables,
or other communication channels. It seems to me that a little antenna with a dime
fits that definition. To subscribing members of the public who pay for such
service. I mean, I read it and I say, why aren't they a cable company?

MR. CLEMENT: Well, Justice Sotomayor, a couple of things. First of all, I
mean, I think if you're—if you’re already at that point, you’ve probably
understood that just like a cable company, they’re public—they’re publicly
performing and maybe they qualify as a cable company and maybe they could
qualify for the compulsory license that's available to cable companies under
Section 111 of the statute.

JUSTICE SOTOMAYOR: But it just gets it mixed up. Do we have to go to all
of those other questions if we find that they’re a cable company? We say they’re
a c[]able company, they get the compulsory license.

At the time, most folks kinda wondered why Sotomayor was going off on this tangent, rather than on the key issues related to the case, concerning the public performance right. What people didn't expect was that the Court would come up with its wacky "looks like a duck" test. But since it did, it certainly seemed to imply that Aereo could just get the compulsory license -- which it's now seeking to do. The company further argues that Justice Breyer, who authored the majority decision, fretted during oral arguments that it would be problematic if Aereo were not allowed to get a compulsory license:

JUSTICE BREYER: Once you take them out of the compulsory licensing
system, they're going to have to find copyright owners, who owns James Agee's
pictures? Who owns something that was written by—like a French silent film in
1915? I mean, the problem is that they might want to have perfectly good things
that people want to watch and they can't find out how to get permission. That is a
problem that worries me and it worries me again once you kick them out of the
other systems.

Aereo also counters the broadcasters argument that the ivi ruling says that online streaming services can't qualify as cable companies for statutory rates doesn't apply here. Earlier, Aereo argued that the Supreme Court ruling effectively overturned the ivi ruling -- an argument that makes a lot of sense. But here, Aereo goes even further, noting some key differences between ivi and Aereo, including a pretty big one: ivi was "geographically unbounded." That was a key part of why ivi lost, and Aereo notes that its service is different, in that it offered a geographically-specific service.

First, the technology at issue in ivi involved geographically unbounded transmissions,
which the Second Circuit noted was “vastly different” from the technology in Fortnightly and
Teleprompter.... By contrast, the Supreme
Court found that, with respect to “Watch Now,” Aereo is “overwhelming[ly] like[]” and “highly
similar” to the technology in Fortnightly and Teleprompter.... As a result, this case is factually distinguishable from ivi on the very point that drove the
Second Circuit’s decision. Indeed, the unrestricted nature of ivi’s transmissions was the
determinative fact for the Second Circuit, which noted that Section 111’s compulsory license
scheme was intended to support local market—rather than national market—systems.... As a result, the court found that ivi’s nationwide retransmission did not seek to
address the important issues of availability of local over-the-air television signals, and it was
therefore not the type of service Congress intended the compulsory license to cover....
Because Aereo’s “Watch Now” technology does not give its subscribers access to broadcasts
outside of their home DMA, and instead gives only geographically-restricted access (with and
through corresponding local physical antenna facilities), and because (as the Supreme Court
found) the technology is “virtually identical” to the technology Congress addressed in the 1976
Amendments, Aereo’s “Watch Now” technology is not governed by ivi.

Aereo makes another interesting argument for survival as well. Even if it doesn't qualify for Section 111 compulsory rates, it should still be allowed to keep its "Watch Now" feature working, because of the DMCA. Basically, it's saying that even if the DVR functionality is deemed infringing, it has a stronger argument around the live streaming, based on the DMCA. All the parenthetical quotes supporting this are from the Supreme Court's ruling...

If the Court concludes that Aereo is not entitled to a Section 111 license, a preliminary
injunction should still not enter because Aereo is entitled to the 17 U.S.C. § 512(a) [DMCA] safe harbor
because its “Watch Now” function is a “transitory digital network communication.” Each of the
Section 512(a) elements is satisfied and undisputed. First, the transmissions of the material are
initiated by or at the direction of a person other than Aereo.... (“Aereo’s system remains inert until a subscriber indicates that she wants to watch a
program.”). Second, the transmission, routing, and storage of material are carried out through an
automatic process, without selection of the material by Aereo.... (“in automatic response to the subscriber’s request”); ... (agreeing with dissent that Aereo does not “select” the content). Third, Aereo does not select the recipients of the material,
except as an automated response to the user.... (“When an
Aereo subscriber selects a program to watch, Aereo streams the program over the Internet to that
subscriber.”). Fourth, no copy of the material transmitted is made accessible to anyone but the
user who made it, and no “Watch Now” copy is kept for a longer period than is reasonably
necessary.... (“It streams the content of the copy to the
same subscriber and to no one else.”); ... (“If the user does not press ‘Record’
before the program ends, the copy of the program created for and used to transmit the program to
the user is automatically deleted when it has finished playing.”);... (“The file saved
to the hard disk using the ‘Watch [Now]’ function is not automatically retained unless the user
clicks ‘Record’ while the show is still open on the user’s web browser.”). Fifth, the material is
transmitted without modification of its content....

As a result of satisfying this safe harbor provision, Aereo cannot be liable for the claimed
“public performance” of Plaintiffs’ claimed copyrighted works. And, Plaintiffs’ requested
preliminary injunction cannot be entered because it is outside the scope of a permitted injunction
under the DMCA.

That could lead to some interesting legal questions going forward.

Finally, Aereo argues that no injunction is necessary, because there's no evidence of "irreparable harm." Here it probably hurts that CBS and other networks more or less admitted that even if Aereo had won the "harm" would be minimal.

The Section 111 arguments about whether or not it's a cable company will continue to make the headlines, but the DMCA argument here may be the most interesting one of all (and one that the broadcasters will most freak out about).

from the thumbing-your-nose-not-such-a-good-idea dept

We had mentioned in passing that wacky Aereo-wannabe FilmOn, run by the eccentric and frequently ridiculous Alki David had declared itself a "cable service" following the Supreme Court's Aereo ruling -- though we pointed out that anything that FilmOn or Alki David says should be taken with a very large dose of salt. Unlike Aereo, who is trying to follow all of the procedures to make sure that it can be classified as a cable service to pay retransmission fees under Section 111, FilmOn just announced that it was a cable service and kept on streaming. And, not surprisingly, one of the courts that had already ruled against FilmOn has found the company in contempt. It probably did not help that the case was before the very same judge who ruled that ivi couldn't qualify as a cable company.

The judge here... is not happy. Judge Naomi Reice Buchwald totally dismisses the idea that the Supreme Court's ruling in Aereo (where it says Aereo is a cable company) actually means that any internet company qualifies for Section 111 compulsory retransmission rates. Basically, we're back to the quantum CATV where it's a cable system for some parts of the law, but not for others.

FilmOn’s second argument is also unavailing because it
hinges on a mischaracterization of the holding in Aereo.
Defendant is correct that, throughout the Aereo opinion, the
Court likened Aereo to a cable company.... But defendant
attaches far too much importance to the Court’s analogizing. A
series of statements that Aereo (and, by extension, FilmOn,
...)
is very similar to a cable system is not the same as a judicial
finding that Aereo and its technological peers are, in fact,
cable companies entitled to retransmission licenses under § 111
of the Copyright Act. Defendant may argue that the Supreme
Court’s language in Aereo implies that FilmOn may be entitled to
a license under § 111, but an implication is not a holding.

Once again, it seems that David's brazen and brash responses to legal setbacks are leading to bad law. It's been suggested more than a few times that David's real role here is to be the buffoonish version of Aereo, basically underminding Aereo's much more sound legal reasoning and arguments at every turn, and that may be true again here. The court slams FilmOn for basically lying to the court in claiming that it didn't mean to stream its content into NY where the injunction from this court blocked it. However, the court points to FilmOn's own press release... which "boasts that defendant's
mini-antenna technology continued to make available to FilmOn
subscribers across the country the local broadcasts of eighteen
major American cities, including New York."

The court, at the very least, points out that Aereo seems to understand how this process works, and has temporarily shut down its operations, but FilmOn just kept streaming. Furthermore, the court points out that, as Aereo is attempting to do, to make use of Section 111, you need to first get a license from the Copyright Office.

FilmOn does not have, and has
never had, a license from the Copyright Office. Indeed,
defendant admits that it did not even apply for a cable license
until July 10, 2014, after plaintiff submitted this order to
show cause -- a fact that undermines any claim by defendant that
it was truly committed to complying with the letter of the law.... Fundamentally, FilmOn cannot choose
to ignore the Injunction merely because it anticipated someday
being able to retransmit plaintiffs’ content legally.

The court then goes on to point out that the Copyright Office itself has said it doesn't think the Supreme Court's ruling has any impact on the ivi ruling and rejected FilmOn's (and Aereo's) request to be granted a license.

Not only is hope no defense to the violation of an
injunction, but defendant’s faith that the Copyright Office
would grant it a cable license was misplaced. On July 23, 2014,
the Copyright Office, citing ivi, expressed its view that
FilmOn, as an internet retransmission service, “falls outside
the scope of the Section 111 license,” and that the Office did
not “see anything in the Supreme Court’s recent decision in
[Aereo] that would alter this conclusion.” ... Thus, not only was FilmOn’s
expectation of a license irrelevant, but it was erroneous as
well. Moreover, even if the Copyright Office had granted a
license to FilmOn, this development would not have excused
defendant’s decision to preemptively stream content in violation
of the Injunction. The Copyright Office’s decision does,
however, provide additional support for our conclusion that
FilmOn’s use of the mini-antenna technology clearly falls within
the ambit of the Injunction, and defendant should be held in
contempt for willfully violating its terms.

The judge also calls out David himself for contempt, and in the end orders FilmOn to pay $10,000 per day for nine days. It calculated the nine days from the day Aereo shut down its service until FilmOn also shut down it's offering. Thus a total of $90,000, but it also says the networks can get attorneys' fees as well, so that could add up.

There are legitimate legal questions about whether or not the ivi ruling is still valid, and whether or not an internet streaming company can qualify for Section 111 retransmission rates. But the last company that should be in court defending that position is FilmOn.

from the quack-quack dept

As we've been discussing, following the Supreme Court's decision that said Aereo was a cable service solely because it looked like one, and therefore had to pay retransmission fees, we warned that this would lead to a legal mess. Some people insisted Aereo could just start paying retransmission fees, but we wondered how that would fit with the ruling in the ivi case, that said internet companies didn't qualify for statutory licenses on retransmission fees, because internet companies are not cable companies.

Aereo made a filing with the court that basically said that given the Supreme Court's "look like a duck" test finding it a cable service, it seemed pretty clear that the ivi ruling was overturned, and thus it now wants a statutory license to pay retransmission fees. In addition to telling the court this, Aereo also filed with the Copyright Office its application to be eligible for those fees, leading the Copyright Office to send back a somewhat passive aggressive letter saying that it will "accept" the letter "on a provisional basis" but refuses to "process" it because, in its opinion, the ivi ruling means Aereo cannot be a cable company and nothing about the Supreme Court calling Aereo a cable company changes its opinion of that fact.

In the view of the Copyright Office, internet retransmissions of broadcast television fall outside the scope of the Section 111 license. Significantly, in WPIX, Inc. v. ivi Inc.... the Second Circuit deferred to and agreed with the Office's interpretation of Section 111. As explained in that case, Section 111 is meant to encompass "localized retransmission services" that are "regulated as cable systems by the FCC." ... We do not see anything in the Supreme Court's recent decision in American Broadcasting Cos. v. Aereo Inc.... that would alter this conclusion.

So... despite the fact that the Supreme Court ruled, pretty directly, that Aereo matches all the important criteria of a cable company to be covered by the laws that regulate cable company retransmissions, the Copyright Office is going to standby the ivi ruling that internet companies can't be cable companies. As reader Gwiz pointed out last week, it's Schrödinger's CATV. When the Supreme Court looks at it for the purposes of making it infringement, it's a CATV. When the Copyright Office looks at for the sake of actually paying those retrans fees, it's no longer a CATV.

What's perhaps even more troubling here is that there is no reason for the Copyright Office to weigh in here. As is noted in the letter, this issue is currently going to be determined in the courts, and the Copyright Office doesn't need to do anything. But, instead, for no clear reason, it decided to offer its opinion and explain why it won't "process" the letter. Either way, we're left in a situation in which the Supreme Court's ridiculous "quacks like a duck" test is creating confusion.

from the let's-pay-up dept

In the wake of the Aereo ruling, I'd been meaning to do a post questioning whether or not the ruling had effectively overturned the ruling in the ivi case from a few years earlier. We had seen some people in our comments point out that, following the Aereo ruling, Aereo had an easy solution: just start paying retransmission fees. Except... that's exactly what ivi had tried to do, and the court had shut them down, using almost the opposite reasoning as the Supreme Court. Specifically, the Second Circuit appeals court (the same that had decided in Aereo's favor) ruled that internet services were not cable companies under the law, and couldn't just pay retrans fees:

Congress did not, however, intend for Section 111's
compulsory license to extend to Internet transmissions.
Indeed, the legislative history indicates that if Congress
had intended to extend Section 111's compulsory license to
Internet retransmissions, it would have done so expressly --
either through the language of Section 111 as it did for microwave
retransmissions or by codifying a separate statutory
provision as it did for satellite carriers. See 17 U.S.C.
§§ 111, 119.

Extending Section 111's compulsory license to Internet
retransmissions, moreover, would not fulfill or further
Congress's statutory purpose. Internet retransmission
services are not seeking to address issues of reception and
remote access to over-the-air television signals. They
provide not a local but a nationwide (arguably
international) service.

Accordingly, we conclude that Congress did not
intend for Section 111's compulsory license to extend to Internet retransmissions.

So, uh, which is it? Aereo has now decided that if the Supreme Court is going to call it a duck for looking like a duck, it's damn well going to quack like a duck too. It has told the lower court that it intends to pay retransmission fees under Section 111, more or less claiming directly that the Supreme Court overruled the ivi ruling. For what it's worth, Aereo's "wacky" (but seriously questionable) "competitor" FilmOn, already made a similar declaration of being a cable company, though as we've learned with FilmOn, you should take almost every claim it makes with a huge grain of salt.

Of course, this is a big problem with the Supreme Court's ruling. By coming up with this wacky "looks like a duck" test, it's encouraging companies like Aereo to use that test in a variety of ways, even though copyright law has never worked that way. Lots of things that "look like" each other face different rules: think of terrestrial radio and internet radio stations. Under the "looks like a duck" test, internet radio stations should be able to declare themselves the same as terrestrial radio stations and stop having to pay performance fees to musicians.

And, of course, the networks themselves don't like Aereo embracing the duck, even though the company is only doing so because of the network's own lawsuit.

On July 1, however, its counsel suggested that Aereo has rethought its entire legal strategy and will raise before this Court a brand new defense based on Section 111 of the Copyright Act. Aereo never before pled (much less litigated) Section 111 as an affirmative defense. Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a “cable system” under Section 111 given its prior statements to this Court and the Supreme Court.

But it's not Aereo that made that decision. It's pretty clearly the Supreme Court and its stupid "looks like a duck" test. The entertainment industry might want to be careful what it wishes for. It applauded the dreadful looks like a duck test, and now it's freaking out when Aereo actually tries to apply it.